The Religious Discrimination Act – 2nd Draft

The new Bill makes it clear the religious organisations may “preference” staff who share their faith, and in some cases preference those to whom their services are provided, if there is a good faith religious reason for doing so. The definition of a good faith reason has been expanded and the types of religious organisations that are protected has been expanded.

Employment Discrimination

Bill Clinton once said “It’s the economy, stupid”.

The Fist has been saying “It’s about employment, stupid”.

The secular movement totally missed the point and was distracted by “Hate Speech” and Falou. As evidence look no further than Fiona Patten at the Press Club. Maybe now, people will start talking about employment discrimination.

Hate speech comes a distant third after “supply of service” issues.

But we’re fucked. Remember the survey result?

The conservative government full of religious nut bags doesn’t care about secularism and doesn’t care about popular opinion.

The Draft Bill

(1) A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.

Note: This subsection does not permit conduct that is otherwise unlawful under any other law of the Commonwealth, including the Sex Discrimination Act 1984.

(2) Without limiting subsection (1), conduct mentioned in that subsection includes giving preference to persons of the same religion as the religious body.

(3) A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body.

Note: This subsection does not permit conduct that is otherwise unlawful under any other law of the Commonwealth, including the Sex Discrimination Act 1984.

(4) Without limiting subsection (3), conduct mentioned in that subsection includes giving preference to persons of the same religion as the religious body.

(5) Religious body means:

(a) an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; or

(b) a registered public benevolent institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; or

(c) any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities);

but does not include an institution that is a hospital or aged care facility, or that solely or primarily provides accommodation.

In RDB1 there was no special arrangement made for the most obvious examples of religious groups which could be said to operate on a “commercial” basis, religious hospitals, aged-care facilities and religious accommodation providers. Rather than being dealt with under cl 11 (they are explicitly said not to be “religious bodies” under cl 11(5)), these organisations now have their own specific provisions in cl 32, sub-clauses (8)-(11). In effect the protection these organisations enjoy is limited to protection in making employment decisions (in which case similar principles as set out in cl 11 will apply, including the ability to “preference” employees from a specific religious tradition). But they will not be allowed to discriminate in the area of deciding which patients to serve or persons to accommodate. In general I get the impression that most religious hospitals and aged-care centres do not tend to choose patients on the basis of their religion. I am not so clear as to whether this might not impact a group that, say, wanted to run a tertiary residential college for Jewish students.

Summary of Changes

Courts’ role in matters of faith

Previously:

Some types of conduct were not discrimination if a person could reasonably consider it to be in accordance with the doctrines, tenets, beliefs and teachings of the relevant religion.

Now:

The Bill now makes clear that a court will now need to consider whether a person of the same religion as the religious body or person could reasonably consider the act to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.

This recognises that religious bodies have a wide margin of appreciation about how they conduct themselves in accordance with their faith, which is not well-suited to judgment by a court. The objective test in this amendment means courts will not be involved in deciding what the doctrines of a particular religion require.

Religious bodies

Previously:

Religious charities were not ‘religious bodies’ if they were solely or primarily engaged in commercial activities.

Now:

Religious charities that are registered as public benevolent institutions are ‘religious bodies’, regardless of their involvement in commercial activities.

Other types of religious charities will also be religious bodies, unless they are solely or primarily engaged in commercial activities.

Health practitioner conduct rules

The conscientious objection provisions now expressly make clear that they do not permit discrimination (but relate to rules that apply to health practitioners at work). An objection must be to a procedure, not a person.

The list of health professions has been narrowed to medicine, midwifery, nursing, pharmacy and psychology.